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Photo of President George W. Bush signing the 'Partial Birth Abortion Act.'
After the Court struck a Nebraska law prohibiting "partial birth" abortions, Congress passed and President George W. Bush signed a similar law. In November 2006, the Court heard oral arguments in two cases challenging the federal law.

Reproduction courtesy of the House of Representatives
Stenberg v. Carhart (2000)

In Stenberg v. Carhart (2000), the Supreme Court ruled that a ban on so-called "partial birth" abortions is unconstitutional. The case involved a challenge to a Nebraska law that made all "partial birth" abortions illegal, except when performed to save the life of the mother. The statute defined "partial birth" abortions as procedures in which the physician "partially delivers vaginally a living unborn child before killing the child," or "intentionally delivering into the vagina a partially unborn child, or a substantial portion thereof," for the purpose of killing the "child" and in fact killing that "child." Though the term "partial birth" abortion is unrecognized by the medical community, the Nebraska law's description most closely paralleled the definition of "dilation and extraction" (or "D&X") and "intact dilation and evacuation" (or "intact D&E"), procedures employed by doctors to perform second-trimester abortions. The intact D&E procedure involves a doctor first "collapsing" the skull of the fetus because it is too large to be extracted from the womb and then evacuating the entire fetus from the mother. The D&X method operates identically except that the fetus is evacuated feet first. Evidence suggested that after sixteen weeks of pregnancy, both procedures are the safest methods of abortion available to the mother.

Leroy Carhart, who specialized in late-term abortions, filed a lawsuit against Nebraska's attorney general, Don Stenberg, in a local federal court, claiming that the law was unconstitutional. Dr. Carhart sought declaratory judgment (or a binding order issued by the court) that would allow him to continue performing D&X and D&E without threat of having his medical license revoked by the state. Carhart claimed that he had 10 to 20 cases each year that required D&X alone. The federal court, siding with Carhart, ruled that Nebraska's ban violated a woman's right to an abortion as defined in Roe v. Wade and qualified in Casey v. Planned Parenthood and must be struck down. Attorney General Stenberg appealed to the Eighth Circuit Court of Appeals, which affirmed the ruling. Finally, he appealed to the Supreme Court, which reviewed the case in 2000.

The Supreme Court, in a 5-4 decision written by Justice Stephen Breyer, affirmed the lower court's decisions and ruled that Nebraska's ban on "partial birth" abortions was unconstitutional. The Court argued that the statute directly violated the Court's decision in Casey v. Planned Parenthood (1992) on two grounds. First, the ban on "partial birth" abortions, meaning D&X and possibly all D&E procedures, lacked an exception to preserve "the health of the mother." Casey ruled that the state may ban "post-viability" abortions, or abortions performed after the point at which the fetus can live outside the womb (with aid of medical technology or otherwise), but must provide an exception "for the life and health of the mother." Moreover, Nebraska's law banned abortion practices prior to fetal viability, when the Court forbids states from banning abortions and permits fewer state regulations. The health exception requirement for postviability abortions, "at minimum requires the same in respect to pre-viability abortions" (emphasis added). The Court concluded that because D&E and D&X have been proven safer than other types of second-trimester abortions in preserving the woman's health, any law that bans these procedures without providing a health exception is clearly unconstitutional.

Second, the Court argued that because the term "partial birth" abortion may apply to all, and not just "intact," D&E procedures, Nebraska's law has the unconstitutional effect of outlawing most pre-viability second-trimester abortions, for which D&E procedures, intact or not, are the most common and usually safest method. The Court asserted that this imposed an "undue burden" upon -- a "substantial obstacle" to -- a woman seeking a pre-viability abortion, which was outlawed in Casey.

On both these grounds, therefore, Nebraska's "partial birth" abortion ban, and by extension other state laws banning "partial birth" abortions, was struck down. Yet the Court's decision in Stenberg v. Carhart was met with intense and frequent criticism. Justice Clarence Thomas argued in dissent that "partial birth" abortions was meant only to apply to D&X procedures in which the evacuated displayed at least some features of "viability." In 2003, likely as a direct response to the Court's decision in Stenberg, Congress passed the so-called "Partial Birth Abortion Act," which closely mirrors Nebraska's law but includes explicit factual findings, gathered in congressional hearings, that suggest D&X and intact D&E are not necessarily more effective in preserving the health of the mother. In November 2006, the Court heard oral arguments in the cases Gonzales v. Carhart and Gonzales v. Planned Parenthood -- both of which test the federal law, which has been struck in multiple federal courts of appeal. Decisions on the cases are expected by the late spring or early summer of 2007. With two new justices joining the Supreme Court in 2006, the ultimate disposition of Stenberg, along with that of Roe and Casey, remains unclear.

Alex McBride is a third year law student at Tulane Law School in New Orleans. He is articles editor on the TULANE LAW REVIEW and the 2005 recipient of the Ray Forrester Award in Constitutional Law. In 2007, Alex will be clerking with Judge Susan Braden on the United States Court of Federal Claims in Washington.

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